Doctor's defense that he was Good Samaritan because he was just helping out and did not charge for procedures causing oxygen deprivation does not fly after all.

Jeff Brown, as trial court judge, George Hanks, as author of appeal's court opinion and Sam Nuchia as second vote on the three-judge panel, had all agreed that the doctor should enjoy immunity from liability under the Good Samaritan statute because - among other things - he had not charged for sticking the intubation tube into the distressed newborn's esophagus instead of inserting it into the baby's windpipe. The Doctor claimed he was only responsible for providing care to the mother of the newborn.The lower-court judges also agreed to exclude the expert affidavit of the parents to establish the doctor's responsibility under these circumstances, but to admit the doctor's. ("The Dos objected to Dr. Riddle’s affidavit. The trial court, however, allowed the affidavit as well as the affidavit of billing specialist, Marie Walton, offered in support of Riddle’s proposition that he was not entitled to remuneration. Having already held that the trial court did not abuse its discretion in striking the Dos’ summary judgment evidence on this issue, we hold that Dr. Riddle’s summary judgment evidence conclusively established that he did not act for or in expectation of remuneration within the meaning of section 74.001(b)(1) and (d) of the Texas Civil Practice and Remedies Code.")The Supreme Court, in a per curiam opinion issued Friday, reversed, holding that the doctor was not entitled to the Good Samaritan defense, and remanded to the court of appeals for consideration of other summary judgment grounds urged by the doctor to avoid being held liable by the baby's parents.

Thao Chau and her family brought this healthcare liability suit against Dr. Jefferson Riddle and his professional association, Greater Houston Anesthesiology, P.A., alleging that Riddle’s negligence in intubating Chau’s son, S.D., deprived him of oxygen and caused brain damage. The trial court granted the defendants’ motion for summary judgment and a divided court of appeals affirmed, reasoning that Riddle conclusively established the Good Samaritan defense. 212 S.W.3d 699, 711. We hold, however, that Riddle did not conclusively establish that he is entitled to the Good Samaritan defense, and, accordingly, we reverse the court of appeals’ judgment.

Riddle was the on-call anesthesiologist for the labor and delivery suites at Memorial Hermann Southwest Hospital on the night of October 29–30, 2001. While on his shift, Riddle was called upon to administer anesthesia to Chau during her emergency cesarean section. When S.D., one of Chau’s twins, was delivered, he was not breathing. After the nurses and residents present were unable to resuscitate S.D., Dr. Duc Le, Chau’s obstetrician and her attending physician, asked Riddle to intubate S.D. It is undisputed that Riddle did so, then, allegedly without performing all the immediate follow-up checks typically required by the standard of care and leaving the nurses and residents to secure the tube, returned to Chau. The nurses and residents continued to attempt to resuscitate S.D., but they were unsuccessful. Twelve minutes after Riddle’s intubation, the neonatologist arrived and discovered that the tube was in S.D.’s esophagus instead of his trachea. As soon as she moved the tube to S.D.’s trachea, he began to breathe, but had suffered permanent brain damage in the interim.

In the trial court, Riddle and Greater Houston Anesthesiology (collectively “Riddle”) argued that because Riddle had responded to the emergency of S.D. not being able to breathe, Texas’s Good Samaritan statute precluded any liability for negligence.[1] Riddle moved for summary judgment, arguing both that he had conclusively proved he was entitled to the affirmative Good Samaritan defense and that Chau had presented no evidence of duty or causation. The trial court granted Riddle’s motion without specifying the grounds, and the court of appeals affirmed, reasoning that Riddle had established the Good Samaritan defense as a matter of law. Id.

In this Court, Chau challenges the court of appeals’ holding that the trial court did not abuse its discretion in enforcing a docket control order or in striking part of Chau’s expert testimony. We agree with the court of appeals’ resolution of those issues. However, we agree with Chau that the court of appeals erred in concluding that Riddle conclusively established the Good Samaritan defense.

To prevail on his summary-judgment motion on the Good Samaritan affirmative defense, Riddle had the burden to conclusively establish each of its elements. McIntyre v. Ramirez, 109 S.W.3d 741, 742, 748 (Tex. 2003). Under the Good Samaritan statute, a medical professional assisting in an emergency in a hospital may be exempted from liability for medical negligence under certain circumstances. See Tex. Civ. Prac. & Rem. Code § 74.001(c); McIntyre, 109 S.W.3d at 744. However, that exemption from liability is subject to a number of exceptions, three of which are at issue here. In pertinent part, the statute provides:

(b) This section does not apply to care administered:

(1) for or in expectation of remuneration;

. . .

(c) If the scene of an emergency is in a hospital or other health care facility or means of medical transport, a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, provided that this subsection does not apply to care administered:

(1) by a person who regularly administers care in a hospital emergency room unless such person is at the scene of the emergency for reasons wholly unrelated to the person’s work in administering health care; or

(2) by an admitting or attending physician of the patient or a treating physician associated by the admitting or attending physician of the patient in question.

Tex. Civ. Prac. & Rem. Code § 74.001(b)–(c). Thus, a doctor performing his or her work in an emergency room, a doctor associated by the admitting or attending physician, and a doctor who charges for his or her services are all precluded from the statute’s protection. Chau contends Riddle falls under each of these exceptions. Because we agree that there is at least an issue of material fact as to whether Riddle was “associated by the admitting or attending physician,” we need not consider whether Riddle regularly administers care in an emergency room or charged for his services. Id. § 74.001(c)(2).

Assuming, as the parties do, that Riddle administered emergency care to S.D., Riddle did so as part of the labor and delivery team. As such, there is at least a question of fact as to whether he was “associated by the admitting or attending physician.” See id. Le, the leader of the labor and delivery team and the only attending physician present, directed Riddle to intubate S.D., and Riddle did so. In distinguishing between which medical personnel were attending to Chau and which were attending to S.D., the court of appeals ignored Chau’s expert’s testimony that the labor and delivery team is expected to share in the care of both the mother and the newborn.

Furthermore, another witness testified that the role of the anesthesiologist in labor and delivery suites at Memorial Hermann includes intubating non-breathing newborns if a neonatologist is not present.

There is some evidence that Riddle was a part of the team administering care to Chau and S.D.

In sum, there is evidence that intubating newborns in this situation is part of Riddle’s job as the on-call anesthesiologist in the labor and delivery suites. Thus, the court of appeals erred in affirming summary judgment for Riddle on his affirmative defense.

Our application of the statute in this case is consistent with the legislative purpose behind extending the Good Samaritan defense to medical professionals in hospital settings. The statute is intended to increase the incentives for physicians to respond voluntarily to medical emergencies, even if they occur in a hospital. McIntyre, 109 S.W.3d at 745.

The exclusions built into the statute ensure that medical professionals are only entitled to the defense if their actions are truly voluntary, not simply part of the professional’s ordinary duties. See Tex. Civ. Prac. & Rem. Code § 74.001(b) –(c). As such, this case can be distinguished from McIntyre, where we upheld the doctor’s assertion of the Good Samaritan defense. There, Douglas McIntyre, an obstetrician, was in the hospital visiting one of his patients when he responded to a page over the intercom requesting that a doctor immediately assist with Debra Ramirez’s delivery. Unlike in this case, McIntyre was not part of Ramirez’s labor and delivery team, was not on-call, and was not expected to respond to such an emergency. Instead, he was going about his scheduled appointments when he voluntarily came to another patient’s aid. McIntyre, 109 S.W.3d at 743, 749.[2] In contrast, there is evidence here that it was part of Riddle’s job as the anesthesiologist in the delivery room to intubate a newborn if the circumstances required.

Given the legislative purpose behind the Good Samaritan defense and the fact that Riddle was part of the labor and delivery team, we cannot agree with the court of appeals’ conclusion that Riddle established his entitlement to the defense as a matter of law. Accordingly, without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to the court of appeals to consider whether the summary judgment should be affirmed on alternative grounds. See Tex. R. App. P. 59.1.

Opinion Delivered: February 15, 2008[1] At the time of these events, the Good Samaritan statute was codified at Texas Civil Practice and Remedies Code section 74.001. It has since been heavily amended and is now found at Texas Civil Practice and Remedies Code section 74.151. All references to the Good Samaritan statute in this opinion will be to section 74.001 as it stood in 2001. See Act of June 16, 1985, 69th Leg., R.S., ch. 962, 1985 Tex. Gen. Laws 3325, amended by Act of June 19, 1993, 73d Leg., R.S., ch. 960, 1993 Tex. Gen. Laws 4193–94, amended by Act of June 18, 1999, 76th Leg., R.S., ch. 679, 1999 Tex. Gen. Laws 3251.[2] In McIntyre, we addressed only the remuneration exception to the Good Samaritan defense; we did not discuss whether McIntyre fit into the “associated by” exception. McIntyre, 109 S.W.3d 741.

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Opinion below: Chao and Do v. Riddle (Tex.App. - Houston [1st Dist.] Sep. 28, 2006, pet. filed)(Hanks) ("Having held that Dr. Riddle and GHA conclusively established their Good Samaritan affirmative defense, we need not evaluate their traditional and no-evidence summary judgment motions on negligence. * * * We affirm the order of the trial court granting summary judgment and dismissing the Dos’ claims.")

The majority opinion breathtakingly expands the scope of the Good Samaritan affirmative defense. Because the majority’s construction of the statute is important to the jurisprudence of this State and is, I believe, contrary to controlling law, I respectfully dissent. I would reverse and remand this case for trial on the merits.

I would hold that the trial court’s orders striking the Dos’ expert, Dr. Reeves, and his affidavits were clearly arbitrary and capricious, and I would sustain the Dos’ first issue.

I would hold that the trial court acted arbitrarily and capriciously in striking paragraphs 6 and 9 of Dr. Katz’s affidavit. In addition, if I were to reach the issue of whether GHA bore its burden of proving as a matter of law that Dr. Riddle was not excluded from the protection of the Good Samaritan statute by subsections 74.001(c)(1) and (d), I would hold that it did not carry its burden.